Despite surviving a stiff challenge at the Supreme Court last year, some of the laws biggest provisions remain at risk from legal challenges. One set of lawsuits accuses the Internal Revenue Service of illegally implementing new subsidies to help people buy insurance. Separately, more than 60 lawsuits have been filed challenging the laws mandate for health plans to cover birth control. A loss for the administration on the contraception mandate would undermine a key selling point for the law that Democrats used to court women in the 2012 elections.
The challenge to the laws insurance subsidies, while more obscure, poses a far bigger and more dangerous threat to the Affordable Care Act. Simon Lazarus, senior counsel at the Constitutional Accountability Center, has argued that theres a very real chance the Supreme Courts conservative majority would strike down the IRSs approach to insurance subsidies if it gets the chance.
Lazarus supports the healthcare law and believes the IRS has taken the right approach to implementing its subsidies. But its easy to see how the case could play out under the strict textualist approach championed by Justice Antonin Scalia, he said. One has to be concerned about that, Lazarus said. If the Supreme Court or judges in the lower courts adopt a narrow reading of the healthcare law, the consequences could be devastating, Lazarus said. Thats exactly why the people behind the lawsuit think they have a real chance to win.
The healthcare law sets up new marketplaces where people can buy health insurance. Most people who use the marketplaces will be eligible for a subsidy to help pay for their premiums. The laws challengers say subsidies should only be available to people who get insurance through a state-run marketplace. If the federal government runs a states marketplace which it will in the majority of states no subsidies should be available, the lawsuit argues. Why not? Because the text of the Affordable Care Act refers to subsidies flowing through exchanges established by the state.
The IRS has said subsidies will be available in all 50 states, no matter who runs the exchanges. The laws critics say that clearly contradicts the text of the statute. The IRS rule we are challenging is at war with the Acts plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges, attorney Michael Carvin said in a statement when his clients filed their challenge to the subsidies.
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Court challenges could tear down major pieces of ObamaCare - The Hill's Healthwatch